Moseman v. U.S. Bank National Association

          Philip J. Gibbons, Jr. STEPHAN ZOURAS, LLP, James B. Zouras Teresa M. Becvar STEPHAN ZOURAS, LLP COUNSEL FOR PLAINTIFF

          Elizabeth R. Gift N.C. Bar No. 44331 Ogletree, Deakins, Nash, Smoak & Stewart, P.C., A. Craig Cleland Erika L. Leonard* Admitted Pro Hac Vice Ogletree, Deakins, Nash, Smoak & Stewart, P.C. COUNSEL FOR DEFENDANT

          CONSENT ORDER GOVERNING THE EXCHANGE AND PROTECTION OF CONFIDENTIAL INFORMATION

          David C. Keesler United States Magistrate Judge.

         Proceedings and Information Governed.

         1. This Order (“Protective Order”) is made under Fed.R.Civ.P. 26(c) and agreed upon by and between Plaintiff Jordan Moseman (“Plaintiff”) and U.S. Bank National Association (“U.S. Bank”), and their respective counsel. On behalf of himself and those similarly situated, Plaintiff makes claims about his and the duties of certain employees which involve the investigation of potentially suspicious activity for the purpose of U.S. Bank's deciding whether to file a Suspicious Activity Report (“SAR”) when required by the Bank Secrecy Act (“BSA”). U.S. Bank represents, and Plaintiff does not dispute, that the BSA requires of U.S. Bank certain reports where they have a high degree of usefulness in criminal, tax or regulatory investigations or proceedings, or in the conduct of intelligence or counterintelligence activities, including analysis, to protect against international terrorism. As such, there may be criminal, regulatory, or even national security implications with respect to publicly disclosing certain information that may be subject to discovery in this action, and that there is a real and immediate interest in protecting such information from public disclosure. Because of the nature of Plaintiff's claims and U.S. Bank's defenses thereto, this case requires the review of information the public disclosure of which may, among other things, provide a road map for or otherwise facilitate persons to engage in serious illegal or suspicious activity and evade U.S. Bank's risk-based controls for detecting potentially suspicious activity and reporting suspicious activity to the Financial Crimes Enforcement Network (“FinCEN”), a bureau of the U.S. Department of the Treasury, as mandated by the BSA.

         2. This Order governs any document, electronically stored information (“ESI”), other information, thing, or testimony furnished by any party to any other party under Rule 34. The information that may be protected by this Protective Order includes all factual information disclosed in this action, including but not limited to: answers to interrogatories; answers to requests for admission; responses to and production of documents, ESI, information and things responsive to requests for production of documents; deposition transcripts and videotapes; deposition exhibits; deposition testimony; and other documents, ESI, information and things produced, given, or filed in this action that are designated by a party as “Confidential” or “Highly Confidential” in accordance with the terms of this Protective Order, as well as any copies, excerpts, abstracts, analyses, summaries, descriptions, or other forms of recorded information containing, reflecting, or disclosing such information.

         Non-disclosure of Certain Information.

         3. U.S. Bank represents, and Plaintiff does not dispute, that the BSA absolutely prohibits U.S. Bank from disclosing certain information to anyone except its regulators and law enforcement, including whether or not it filed any particular SAR and any information that would reveal the existence of a SAR (the “BSA Disclosure Prohibition”). 31 U.S.C. §5318(g), 12 C.F.R. §21.11(k), 31 U.S.C. 1020.320(e), see also 75 Fed. Reg. 75593 (Dec. 3, 2010). Thus, no request for discovery shall be construed to seek production of any information subject to the BSA Disclosure Prohibition, and U.S. Bank will not attempt to use any information subject to the BSA Disclosure Prohibition in this action or claim that any such information, if it could be used, could assist it in defending the claims in this action.

         Designation and Maintenance of Information.

         4. For purposes of this Protective Order, the term “Confidential Information” means any document, electronically stored information (“ESI”), other information, thing, or testimony that is comprised of medical, personal, personnel (for individuals who are not parties to this lawsuit) or proprietary information, trade secrets or commercial information that is not publicly known and is of technical or commercial advantage to its possessor or which could be misused if not protected in accordance with Fed.R.Civ.P. 26(c), or other information required by law or agreement to be kept confidential. Confidential Information that is within the scope of this paragraph may be designated by the producing party as containing confidential information by placing on each page and each thing a legend substantially as follows: “CONFIDENTIAL.” If it is not reasonable or practicable to place such a legend on every page, such as in the case of certain natively produced ESI, the producing party may comply with this designation requirement by conspicuously designating the file as “CONFIDENTIAL.”Any document, ESI, other information, thing, or testimony may be designated as “Confidential Information” whether produced by U.S. Bank, Plaintiff, any opt-in Plaintiff who has joined this action as a “party plaintiff” under 29 U.S.C. § 216(b), or any non-party who receives a subpoena in connection with this action under Rule 45.

         5. For purposes of this Protective Order, the term “Highly Confidential Information” means any document, electronically stored information (“ESI”), other information, thing, or testimony that reveals or concerns processes, thresholds, procedures, scenarios, decision-making criteria or other information by which U.S. Bank detects potentially suspicious activity, investigates that activity, decides whether it is in fact suspicious, and determines whether to file a SAR as mandated by 31 U.S.C. §5318, 12 C.F.R. §21.11, and 31 C.F.R. §1020.320. This Highly Confidential Information may also concern law enforcement agencies and regulators. Such Highly Confidential Information could provide a roadmap or other guidance which persons could use to evade detection and thereby engage in serious criminal or terrorist activity. Highly Confidential Information that is within the scope of this paragraph may be designated by the producing party as containing Highly Confidential Information by placing on each page and each thing a legend substantially as follows: “HIGHLY CONFIDENTIAL.” If it is not reasonable or practicable to place such a legend on every page, such as in the case of certain natively produced ESI, the producing party may comply with this designation requirement by conspicuously designating the file as “HIGHLY CONFIDENTIAL.” Any document, ESI, other information, thing, or testimony may be designated as “Highly Confidential Information” whether produced by U.S. Bank, Plaintiff, any opt-in Plaintiff who has joined this action as a “party plaintiff” under 29 U.S.C. § 216(b), or any non-party who receives a subpoena in connection with this action under Rule 45.

         6. Information disclosed at a deposition may be designated as Confidential or Highly Confidential within the meaning of the preceding paragraphs by either: (a) indicating on the record at the deposition that the testimony is Confidential or Highly Confidential and subject to this Protective Order, or (b) notifying the other party in writing within ten business days of receipt of the transcript of the pages and lines and/or exhibits that contain Confidential or Highly Confidential Information. Unless the parties otherwise agreed at the conclusion of the deposition, the transcript and exhibits will be treated as Highly Confidential Information until the conclusion of the above ten business day period. If a party designates deposition testimony or exhibits as Confidential or Highly Confidential, the designating party is responsible for notifying the applicable court reporter and videographer (if any) about such designation, and the designating party shall bear any costs associated with the designations.

         7. In the event that Counsel for any party at any time believes that particular Confidential or Highly Confidential Information or material should cease to be so designated, Counsel shall notify the designating party, specifying the particular designation(s) in dispute and the bases for each such challenge. Counsel for the challenging and designating parties shall confer in good faith within ten business days of such notification, in an effort to resolve the matter by agreement. If no agreement is reached within ten business days thereafter, the designating party shall have the burden of moving and may file a motion that identifies the challenged Confidential or Highly Confidential material setting forth in detail the basis for the designation. The burden of persuasion in any such challenge proceeding shall be on the designating party. In the event such a motion is made, any disputed Confidential or Highly Confidential material shall remain subject to and protected by this Order until such motion is resolved.

         8. Recognizing the significant burdens on the parties and the Court that designating information as confidential or highly confidential may create, each party shall exercise good faith and reasonable discretion ...